The Supreme Court nomination and confirmation process has come under increasing scrutiny in recent years. In particular, scholars and the public alike view it as broken because it has become too political, too ideological, and therefore overly contentious. While some conclude that these circumstances have led presidents to choose second-rate nominees, the more dangerous effect of this process is that it may seriously undermine the legitimacy of the nation's highest court of justice. A great deal of evidence has been wielded to support these claims. However, Michael Comiskey lays out a case that the conclusions drawn—from both the legalist and the political schools of thought—do not mean that the process is broken. Comiskey's book argues that the process actually works very well, not despite but because of its political, ideological, and contentious nature. It is a cogently argued book and merits attention from scholars who want to better understand the Supreme Court nomination and confirmation processes.

Comiskey begins by analyzing the conventional view that the Senate does not have the power to analyze Supreme Court nominees on ideological grounds. To support this argument, he first examines the debate over the nomination and confirmation clauses, as well as Alexander Hamilton's writings in the Federalist. He argues that the Framers of the Constitution knew the process would be political, and that nothing in the language of the document suggests they thought otherwise. Additionally, he suggests that the political and ideological nature of the process checks both the executive and the legislative branches from dominating the judiciary.

After focusing on the historical argument, Comiskey turns to the modern day, and addresses the question of whether the process has become too politicized and focused on ideology. He concludes that it has not. In drawing this conclusion, he critiques the legalist school by arguing that they generally focus on only the confirmation battles of Robert Bork and Clarence Thomas. He views these two battles as exceptional cases; whereas they were highly publicized and political, the bulk of recent confirmations have not involved much controversy. The ultimate criticism of the political process, according to the legal school, is that it has resulted in nominees who are less qualified than were nominees from the early twentieth century and before.

Comiskey empirically analyzes the claim that the process today has led presidents to choose inferior nominees to fill vacancies on the Court. To do so, he surveyed a sample of law school professors as well as political scientists. This survey asked the respondents to rate all twentieth-century Supreme Court justices on a four-point scale (from failure to excellent). The key findings he draws from his data is that justices nominated most recently stand up quite well to those nominated early on who were consider “great” justices. This is an important finding because it suggests that the nomination and confirmation process may not be broken to the extent that it produces poor nominees.

I am not fully convinced, however, of the conclusions Comiskey draws. Indeed, he explicitly did not ask the respondents for any information about their own political views or ideology. While this makes some sense given that he wanted a high response rate and given that he did not want to bias his results, it is problematic. Specifically, by his taking this tack, it is impossible to tell whether a respondent's ideology affected his or her evaluation of a particular justice. For instance, it could be that respondents rate justices more highly if they agree with that justice's decisions ideologically. So, while the results are compelling in the way they are presented, readers should heed them with caution because Comiskey does not control for factors that might affect the responses. Thus, while the setup in the first half of the book leads him to test whether justices are less qualified today, the test is not adequate for drawing any specific conclusions.

The remainder of the book begins by tracing the proceedings of the Clarence Thomas confirmation battle and then turns to an analysis of whether nominees can truly be “stealth candidates,” like Justice David Souter. Finally, Comiskey analyzes whether presidents can pack the Court with nominees who share their ideology. The analysis of the Thomas hearings is first rate. It presents insights about the process in a way that brings the proceedings to life 14 years after they took place, and melds them together in a way that intuitively demonstrates why Thomas won confirmation despite the political and ideological battle surrounding him. Comiskey's argument comports with recent empirical work on the confirmation process, including my own. Indeed, the coalition of forces that came together was able to bring Thomas through the process in the face of major ideological opposition and a charge of sexual harassment. Thus, the strong case study provides additional, and exceptional, insight into why Thomas was able to win.

In the concluding chapter, Comiskey focuses on four reforms proposed to fix the nomination and confirmation process. These include greater prenomination consultation between the president and the Senate, using special counsel to interview nominees, making confirmation hinge on a supermajority of senators rather than a simple majority, and placing the burden of proof on the president for demonstrating the efficacy of his nominee. He argues that none of these reforms is tenable, nor would any of them have a great effect on the process. His evidence is good, but thin. In other words, the reforms he discusses are theoretically (if not empirically) testable hypotheses using game theoretic tools, or by focusing on similar battles in a comparative framework (at the state level, for instance). So, while I think the analysis in this final chapter is good, it needs to be pushed just a bit further to fully convince readers.

Overall, Comiskey provides a very good critique of the arguments forwarded by the legal and political schools about a possible broken confirmation process. His analysis of historical documents and the inner workings of the current process are quite good. While I think there are some empirical shortcomings with the analysis in Chapter 4, as well as in Chapter 8, I commend Seeking Justice to anyone interested in learning about the ins and outs of the confirmation process.